Docket No. 639
In the Matter of Dianne Wilkerson
September 13, 2001
The State Ethics Commission and Dianne Wilkerson enter into
this Disposition Agreement pursuant to Section 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.40).
On June 21, 2000, the Commission initiated, pursuant to G.L.
c. 268B, s.40), a preliminary inquiry into possible violations of
the conflict of interest law, G.L. c. 268A, by Wilkerson. The
Commission has concluded its inquiry and, on April 10, 200 1, found
reasonable cause to believe that Wilkerson violated G.L. c. 268A.
The Commission and Wilkerson now agree to the following
findings of fact and conclusions of law:
Findings of Fact
1. Wilkerson has served in the state legislature since 1993.
As a senator, she is a state employee within the meaning of G.L. c.
268A, s. 1.
2. Wilkerson has been actively interested in minority
community issues, in general, and in minority community banking
issues, specifically, for several years, first in her capacity as
a private practice attorney and community activist in the 1980s and
then as a state senator in the 1990s.
3. At all times relevant in this agreement, the Boston Bank of
Commerce ("BBOC") was the only minority-owned financial institution
in New England.
4. In January 1999, Wilkerson, in her private capacity,
entered into a contract with the BBOC by which from December 15,
1998 to April 15, 1999, she was to solicit private-sector deposits
for the BBOC. According to the agreement, Wilkerson was to
"identify deposit prospects from the private sector and actively
solicit such prospects for significant funds to be placed with
BBOC." The contract provided that Wilkerson would receive a monthly
retainer fee of $1,000, plus a one-time fee for each new deposit
generated and maintained, based on a set fee schedule.
5. In May 1999, Wilkerson's contract was extended through
December 31, 1999. Wilkerson's monthly retainer fee was increased
6. Wilkerson provided the services and received the fees
contemplated by the contract and its extension.
7. In 1999, the BBOC paid Wilkerson monthly fees totaling
$21,500 pursuant to the original contract and the contract as
8. In spring 1999, a merger between Fleet Bank and BankBoston
was pending. At that time it was clear that any such merger would
require Fleet to divest a number of its branches.
9. Wilkerson was concerned about the negative impact the Fleet
and BankBoston merger could have on minority and low-income
communities across the commonwealth. Wilkerson wanted Fleet to
divest some its branches and transfer them to banks with a history
of serving minority communities. The BBOC fit that descrIption and
was interested in acquiring the local branches.
10.The BBOC informed Fleet that it was interested in
purchasing some of the branches that would be divested in the
merger. If the BBOC had been permitted to purchase all the branches
it desired, the BBOC would have increased its deposits six-fold by
purchasing the branches that Fleet planned to sell.
11. On June 4, 1999, Wilkerson wrote a letter on her senate
letterhead to Fleet and BankBoston stating that the merger
divestiture plan should be one that supports local, minority-owned
banks. In an attachment to the letter, Wilkerson noted favorably
the example of another bank, which under similar circumstances sold
four branches and $50 million in associated deposits to a
nority-owned commercial bank. Wilkerson also wrote, "The
Department of Justice and Federal Reserve Board can ensure that
competition and community interests are served by directing
FleetBank and BankBoston to make some of their divested branches
available to a CDFI."
12. In addition, Wilkerson forwarded a copy of her June 4,
1999 letter to the Board of Bank Incorporation ("the 13131"). The
BBI is a state adjudicative body consisting of the State Treasurer,
the Banking Commissioner and the Department of Revenue
Commissioner. The BBI represented the final regulatory hurdle
before the merger of Fleet and BankBoston was complete.
13. On July 7,1999, Wilkerson, identifying herself if as a
state senator, testified at a public meeting on the merger before
the Federal Reserve Board in Boston. In her testimony, Wilkerson
stated that the question of who gets the divested branches was of
critical importance to the minority community and that the BBOC, as
the sole minority-owned bank in the community, should get these
14. Wilkerson, identified as a state senator, also spoke at a
public hearing before the BBI on July 13, 1999. Her testimony was
substantially the same as what she gave before the Federal Reserve
Board. In a July 13, 1999 BBI filing, Wilkerson wrote, "The support
for divestiture to community banks, and the minority-owned bank,
BBOC, results from awareness as to who is currently serving the
public need. We encourage this Board to pay attention to this
reality as well."
15. Wilkerson was not compensated under her consulting
arrangement with the BBOC for her actions in advocating the BBOC
receive some of the branches divested through the Fleet/BankBoston
16.The BBI approved the Fleet/BankBoston merger on September
30, 1999. Fleet ultimately sold all the divested branches to
17. On October 1, 1999, Wilkerson contacted the Commission
seeking legal advice and subsequently on October 21, 1999,
requested that this matter be referred to the Commission's
enforcement division for review.
18. Wilkerson received legal advice concerning her arrangement
with the BBOC from the Commission. According to Wilkerson, she
understands that advice and complied with it. In addition,
Wilkerson will request additional guidance in the future regarding
any arrangement with BBOC from the Commission, if necessary, and
will act accordingly.
19. Wilkerson cooperated with the Commission's investigation.
Conclusions of Law
20. General Laws chapter 268A, s. 23(b)(3), in relevant part,
prohibits a state employee from, knowingly or with reason to know,
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 the employee's
favor in the performance of the employee's official duties, or that
the employee is likely to act or fall to act as the result of
kinship, rank, position or undue influence of any party or person.
An elected state employee can avoid a violation of s.23(b)(3) by
disclosing in a manner which is public in nature, the facts which
would otherwise lead to such a conclusion.
21. By advocating in testimony and written submissions and/or
letters as a state senator that the BBOC and/or minority-owned
banks should receive the divested branches arising from the
Fleet/BankBoston merger while she had a significant private
commercial relationship with a potential beneficiary of her
official actions, Wilkerson with reason to know acted in a manner
which would cause a reasonable person knowing these facts to
conclude that the BBOC can unduly enjoy her favor in the
performance of her official duties. Therefore, Wilkerson violated
s.23(b)(3). (This violation could have been avoided if Wilkerson
had disclosed in a manner which was public in nature her private
relationship with the BBOC.)
In view of the foregoing violation of G.L. c. 268A by
Wilkerson, 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 Wilkerson:
(1) that Wilkerson pay to the Commission the sum of $1,000
as a civil penalty for violating G.L. c. 268A, s.23(b)(3); and
(2) that Wilkerson 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
 The BBOC is the only Massachusetts bank designated by the
Treasury Department as a Community Development Financial
Institution ("CDFI"), which is defined by the Treasury Department
as an institution that specializes in community business
development and lending in urban, rural or Native American
communities that frequently lack adequate access to capital.
 In determining the amount of the civil penalty, the
Commission considered that Wilkerson sought and obtained legal
advice from the Commission, reported her actions to the Commission,
and, that Wilkerson has a history of active participation in
minority community banking issues (which somewhat mitigates the