Docket Nos.: 246, 247
IN THE MATTER OF FRANK WALLEN AND JOHN CARDELLI
Appearing:
Stephen P. Fauteux, Esq., Nancy R. Hayes,
Esq. Counsel for Petitioner State Ethics Commission
Lawrence Siskind, Esq., Counsel for Respondent
Frank Wallen
Richard Fell, Esq., Counsel for Respondent John
Cardelli
Commissioners: Diver, Ch., Brickman, Burns, McLaughlin, Mulligan
Date: October 29, 1984
DECISION AND ORDER
I. Procedural History
The Petitioner initiated these adjudicatory proceedings on
December 16, 1983 by filing Orders to Show Cause pursuant to the
Commission's Rules of Practice and Procedure, 930 CMR 1.01(5)(a).
The Order in Adjudicatory Docket No. 247 alleged that Frank Wallen,
the Commissioner of the Brockton Department of Public Works (DPW),
violated G.L. c. 268A, s.3[1] and s.23(paragraph 2)(3)[2] by
accepting $8,500 from Charm Construction Company (Charm) in two
separate
Page 198
transactions at a time when Charm had contracts and other business
dealings with the DPW. The Order also alleged that Wallen violated
s.23(paragraph 2)(3) by his official and private dealings with
companies owned by Gerald j. Kelleher. The Order in Adjudicatory
Docket No. 246 alleged that John Cardelli, an owner of Charm,
violated G.L. c. 268A, s.3(a) by giving Respondent Wallen $8,500
at times when Charm had contracts and other business dealings with
the DPW.
The Respondents' Answers denied the material allegations and
raised several affirmative defenses asserting the Commission's lack
of jurisdiction and authority to adjudicate the factual
allegations. Prior to the commencement of the hearings, the
Respondents filed motions to dismiss addressing the timeliness of
the Orders, the Commission's authority to issue summonses during
a preliminary inquiry, and the appropriateness of admitting into
evidence the results of a polygraph examination. These motions were
ruled upon by Commission Chairman Colin Diver, who was designated
as the Presiding Officer.[3] See, G.L. c. 268A, s.4(c).
Hearings were conducted on nine days between April and July,
1984. The parties thereafter filed briefs with the Commission and
presented oral arguments before the full Commission on
September 11,1984. In rendering this Decision and Order, all members of the
Commission have considered the testimony, evidence and arguments,
of the parties.
II. Findings of Fact
1. Wallen was DPW commissioner from December 14, 1976 to June
29, 1982. In that capacity, he had direct supervisory
responsibility for seven divisions, including the water and sewer
divisions. He was authorized to make such contracts as were
necessary to carry out the functions of the department, and he had
general supervision of all subordinate officers of the department
and general supervision of the seven divisions within the
department. His duties included reviewing each division's budget
and approving all contracts and invoices for payment after the
appropriate subordinates had made their review and indicated their
approval. In addition to approving budgets, projects, and payments
for projects, he would on occasion become involved in resolving
individual disputes or matters between division heads and
contractors.[4]
2. Charm was a Massachusetts corporation during all relevant
periods covered by the Order to Show Cause. From 1978 through 1982
inclusive, Charm received approximately $1.3 million for various
construction services provided to the DPW. Respondent John Cardelli
and Domenic D'Allesandro were owners and officers from 1979 through
January 31, 1981. In 1982, Cardelli redeemed D'Allesandro's stock,
and the company ceased operations later in the year.
3. Gerald Kelleher is the owner of Sergeant Supply Company
(Sergeant Supply), a building supply company in Brockton. Kelleher
also owns Kelleher Contractors, a company which provides materials
and equipment services.
The $8,000 payment to Kelleher on December 24,1980
4. In March, 1980, Wallen purchased property at 55 Chilton Road
in Brockton. In April through June, 1980, Wallen, acting as his own
general contractor, began his home construction. He contracted with
Kelleher Contractors to help clear the land, prepare the
foundation, and provide cement for the foundation. Although the
work was performed in April or May, Kelleher did not bill Wallen
for these services and materials until December 18, 1980. The bill
was approximately $11,600.
5. In early July, 1980, Wallen opened a credit account with
Sergeant Supply in order to buy building materials to construct his
house. Wallen incurred a substantial number of charges on the
accounts between July and December, 1980.
6. As of mid-December, 1980, Wallen owed $18,000 to Sargent
Supply and $11,601.83 to Kelleher Contractors.
7. On December 24, 1980, Wallen paid $8,000 in cash to Kelleher
on his Sergeant Supply bill, leaving approximately a $10,000
balance.[5]
The $500 military party check from Charm
8. As of early 1982, Charm had a number of contracts with the
DPW but was beginning to wind down. Dominic D'Allesandro, who was
in the process of dropping out of Charm, appeared in Wallen's
office in early January 1982. He had learned of Wallen's recent
military promotion and told Wallen that he wanted to
Page 199
take him out to eat to celebrate the promotion and would pay
for the dinner out of Charm's remaining fringe benefit account.
Wallen responded that his military reserve duty commitments limited
his availability, but that the officers who served under him were
planning to take him out to eat at the Hanscom Field Officer's Club
later in the month. D'Allesandro agreed to have Charm pay for the
cost of the meal for all of the officers, including Wallen. Based
on their discussions about the party, they understood that the cost
would be approximately $500.
9. On Friday, January 22, 1982, D'Allesandro visited Wallen at
his DPW office. He discussed with Wallen Charm's commitment to
fulfilling its snowplowing contracts with the DPW despite the fact
that Cardelli was hospitalized. There was a snowstorm that day, and
D'AIlesandro confirmed that the Charm equipment would be available.
During this visit, D'Allesandro handed to Wallen a Charm check
signed by John Cardelli. The purpose of the check was to pay for
Wallen's military promotion party. It is not clear if Wallen filled
in the dollar amount of the check ($500) upon receiving the check
from D'Allesandro, or if the amount had already been filled in by
D'Allesandro. It is also unclear whether Wallen filled in the name
of the payee, Hanscom Field Officers Club, upon receiving the
check.
10. The party was held on the scheduled date of January 23,
1982, but had to be relocated to the Sheraton Lexington Hotel due
to a snowstorm. D'Allesandro did not attend, presumably because of
the storm. Approximately eighteen officers did attend, and at least
one officer was told by Wallen that someone was "picking up the
tab" for the party.[6] At the end of the party, Wallen used the
$500 Charm check to pay for the bulk of the bill, with the
remaining charges distributed among the officers. Wallen changed
the name of the payee on the Charm check to reflect the Sheraton
Lexington Hotel.
Wallen's public and private dealings with Kelleher
11. Kelleher's companies, Sergeant Supply and Kelleher
Contractors, received approximately $225,000 for contract work for
the DPW between 1978 and 1982.
12. As DPW Commissioner, Wallen was responsible for approving
and overseeing the contracts. Additionally, Wallen participated as
Commissioner in arranging for the DPW to use a Kelleher-owned
building rent-free as of July, 1981 in lieu of Kelleher's paying
property taxes.
13. In July, 1980, Wallen opened a credit account at Sergeant
Supply through which he arranged to purchase building supplies on
account.[7] Wallen had also previously contracted to have Kelleher
contractors perform services worth $11,600 on his house. See,
paragraph 4, 5, supra.
14. In August, 1980, Kelleher agreed to give Wallen a ten
percent discount totaling $2,277 on two bills which Wallen had
paid promptly. A discount was customarily given to large-volume
purchasers who paid their bills promptly, although the amount of
the discount was discretionary. The discount was not formally
credited to Wallen's account until December, 1980. Through a
bookkeeping error, the discount was not reflected in Wallen's 1981
bills. Wallen corrected the error after discussions with Sergeant
Supply in October, 1981.
15. Wallen's purchases from Sargent Supply exceeded $40,000 in
1980, and Wallen fell behind in his payments towards the end of
1980.
16. Despite Wallen's failure to pay his bills to Sargent Supply,
Kelleher permitted Wallen to charge new purchases exceeding $5,000
in late 1980.
17. As of May, 1981, Wallen's unpaid balance to Sargent Supply
was $10,000. Wallen paid $1,000 to Kelleher in May, 1981 and paid
off the remaining $9,000 in October, 1981. Although the Sargent
Supply bills indicated that interest of one and one-half percent
per month and eighteen percent annually would be charged on all
past due accounts, Kelleher did not charge Wallen interest on his
unpaid bills during this period.
18. From December, 1980 until November, 1981, Kelleher
Contractor's $11,600 bill to Wallen remained unpaid. During that
ten-month period, Kelleher neither formally notified Wallen that
he was delinquent nor charged Wallen any interest on his unpaid
bill.
Page 200
19. In November, 1981 Wallen executed a note to Kelleher for the
$11,600 unpaid Kelleher Contractor bill at an annual twelve percent
interest rate. Kelleher did not require Wallen to provide any
collateral on the note until November, 1982.
20. The accommodations which Wallen received from Kelleher
between 1980 and 1982 were significant to Wallen because of his
cash flow difficulties during that period.
III. Discussion
A. Procedural Issues
Prior to and during the adjudicatory hearings, the Presiding
Officer ruled on a number of procedural issues raised by the
parties. To the extent that the parties have renewed their
objections to the Presiding Officer's rulings, the Commission will
briefly review those rulings. None of the objections is
meritorious.
1. Statute of Limitations
The Petitioner's action was timely. The December 16,1983 Order
to Show Cause was issued within three years of the date of the acts
upon which the s.3 and s.23 violations were alleged.[8] Contrary
to Wallen's assertion, the statute of limitations is tolled on the
date of issuance of the Order to Show Cause and not on the date of
receipt by the Respondent. See, In the Matter of John P. Saccone,
1982 Ethics Commission 87; Commission's Procedures Covering the
Initiation and Conduct of Preliminary Inquiries and Investigations
(Procedures), s.10; Mass. R. Civ. P.3. The Respondent has not
alleged any lack of due diligence in the Petitioner's effectuating
service following the issuance of the Order to Show Cause, and,
even if alleged, the assertion would not prevail. An examination
of the certificate of service filed together with the Show Cause
Order demonstrates that service by certified mail was effectuated
simultaneously with the issuance of the Order to Show Cause on
December 16, 1983. See, Bates Mfg. Co. v. U.S., 303 U.S. 567,
572(1938).
2. Commission Procedures
a) Contrary to Respondent Cardelli's assertion, the Commission
did not violate its confidentiality mandate under G.L. c. 268B s.7
by issuing a summons during the preliminary inquiry stage of the
investigation. The Commission is authorized to issue summonses at
the preliminary inquiry stage of an investigation. The Commission's
enabling statute, G.L. c. 268B, s.4, provides the Commission with
summons issuance authority with respect to "any matter being
investigated by it." The Commission's Procedures construe G.L. c.
268B, s.4 to authorize expressly the issuance of summonses for
investigative purpoes during the course of any preliminary inquiry
and full investigation. Procedures (1980) s.9A. The Commission's
interpretation of its own enabling statute is reasonable, Baker
Transportation Inc., v. State Tax Commission, 371 Mass 872,
877(1977) and consistent with the conclusions of the Supreme
Judicial Court in a comparable case, Massachusetts Commission
Against Discrimination v. Liberty Mutual Insurance Company, 371
Mass. 186(1976). Inasmuch as the summonses were issued pursuant to
the Commission's authority, there was no violation of the
confidentiality mandate of G.L. c. 268B, s.7.
b) The fact that the investigative phase of the case was
lengthy is not a basis for dismissal of the Order to Show Cause.
The duration of a Commission preliminary inquiry and full
investigation is within the discretion of the Commission.
Brotherhood of Railway Clerks v. Association for Benefit of Non-
Contract Employees, 380 U.S. 650, 661, 662 (1965); Inland Empire
District Council v. Millis, 325 U.S. 697,706 (1945); In the Matter
of John R. Buckley, 1982 Ethics Commission 2,5. The Commission's
Procedures s.6(C) and 8(B) establish a procedure for extending an
inquiry or investigation. The Petitioner's compliance with these
extension procedures did not violate the Respondent's due process
rights.
c) The notice to Cardelli of the initiation of the preliminary
inquiry was timely. The Commission notified Cardelli of the
initiation of a preliminary inquiry within thirty days of the July
19,1982 commencement of the inquiry pursuant to G.L. c. 268B,
s.4(a). Because the minutes of the Commission's meetings do not
reflect an earlier initiation date of the preliminary inquiry with
respect to Cardelli, there was no reason to provide earlier notice.
3. Polygraph Examination
Respondent Wallen, through his counsel, voluntarily initiated
the proposal that he take a polygraph examination, agreed to a
polygraph examiner, and thereafter voluntarily participated in the
examination. The Commission finds no reason to preclude the
admission of the results of the polygraph examination in the
adjudicatory proceeding.
Page 201
The Commission is a state agency with civil enforcement powers,
G.L. c. 268B, s.3(i), and possesses the power to impose only civil
fines and initiate only civil actions. G.L. c. 268B, s.4(d). See,
Craven v. State Ethics Commission, 390 Mass. 191 ,201, (1983);
Opinion of the Justices, 375 Mass. 795 , 819 (1978). Because
proceedings before the Commission are civil and not criminal in
nature, the Commission is not bound by the strict rules of
admissibility of evidence which prevail in criminal judicial
proceedings. None of the precedents cited by the Respondent holds
that the results of polygraph tests would be inherently
inadmissible in civil administrative proceedings in jurisdictions
such as Massachusetts which have accepted the admissibility of such
evidence. See, Commonwealth v. Vitello, 376 Mass. 426 (1978).
However, as will be seen, infra, the weight to be given such
evidence is a matter within the Commission's deliberative
discretion.
In view of the Respondent's voluntary initiation of and
participation in the polygraph examination, with the assistance of
counsel, whatever fifth amendment privileges from self-
incrimination were implicated by the Respondent's responses to the
polygraph examination were therefore knowingly and intelligently
waived. Commonwealth v. Mandeville, 386 Mass. 393 (1982);
Commonwealth v. Harris., 11 Mass. App. 165(1981); Blaisdell v.
Commonwealth, 372 Mass. 753 (1977); Johnson v. Zerbst, 304 U.S. 458
(1938).[9]
B. G.L. c. 268A Allegations
1. The $8,000 Kelleher Payment
The question which preoccupied the hearings was the source of
Wallen's payment of $8.000 in cash to Kelleher on December 24, 1980
in partial payment for the substantial bill which Wallen had
incurred in purchasing supplies for his new house. Although the
Petitioner alleges that the $8,000 came from Charm and was given
to Wallen for or because of his official acts as DPW commissioner,
the evidence is not persuasive.
There is no direct evidence that Charm gave the money to Wallen.
The evidence linking Charm and Wallen is circumstantial that on the
day before Wallen paid Kelleher $8,000, Charm wrote a check for
$10,014 which was endorsed and cashed by Wallen's uncle, who could
have given the cash to Wallen. The response of Wallen and Cardelli
is two-fold:
a. The Charm check for $10,014 was a loan by Charm to
Frank Barrett to pay off his gambling debts; that Albert
Wallen cashed the check and gave Barrett the cash as a favor,
and that Albert Wallen did not give the cash to Frank Wallen,
and
b. The source of the $8,000 cash payment which Frank
Wallen make to Kelleher was a loan from Edward R. Tautkus, Sr.
on December 24, 1980.
The Petitioner's case is built on discrediting the testimony
supporting the Respondents' version and asserting that the only
remaining explanation is that the cash which Frank Wallen used to
pay Kelleher on December 24, 1980 had to have come from Charm.
Based upon a review of the record and consideration of the
observations of the Presiding Officer who viewed the demeanor of
the witnesses and heard first-hand their testimony, the Commission
is not persuaded that the source of the $8,000 was Charm.
The Respondents' position regarding the $10,014 Charm check is
plausible. In particular, the Commission credits the testimony of
Francis Barrett. While there may have been potential reasons for
Barrett to have participated in a cover-up for Frank Wallen, he
made too many admissions against his own interest concerning his
gambling history to conclude that he was lying about the check.
Barrett's asserted reasons for having Albert Wallen endorse and
cash the check are also believable. Having misrepresented to Charm
that he was still affiliated with Shenanigan's Restaurant so that
Charm could write the check to Shenanigan's in an odd figure as a
business expense, Barrett could reasonably have doubted his ability
to cash the check on his own. Rather than risk a bank questioning
Barrett's authority to cash the check, Barrett endorsed the check
to Albert Wallen who was in a better position to cash it. Albert
Wallen was a reasonable choice because he knew of Barrett's debt
problems and had previously assisted him.
There are fewer reasons for crediting the entire testimony of
Wallen or his uncle. Wallen's hearing testimony conflicted with an
earlier version which he had given to Commission investigators
concerning the source of the $8,000. Moreover, the polygraph
examiner's opinion was that Wallen was untruthful in denying in
February. 1984 that he had received any of the money from Charm's
$10,014 check to Barrett. Yet, even by limiting the weight of
Wallen's hearing testimony and giving some probative value to the
results
Page 202
of the polygraph examination, [10] the Commission is not persuaded
that Wallen received any of the cash from Charm's $10,014 check to
Barrett.
Albert Wallen did not come across as a completely reliable
witness, but his testimony concerning the role he played in
facilitating the cash payment to Barrett is believable. Moreover,
if there were a master plan to conceal the routing of a payoff from
Charm to Wallen through the $10,014, it is logical that Wallen's
uncle would not have appeared as an endorser of the check. Rather
than regarding the endorsement as a "mistake" in the execution of
the plan, a more likely inference from the endorsement is that
there is no plan.[11]
There is no conclusive evidence in the record concerning the
source of Wallen's $8,000 cash payment to Kelleher on December 24,
1984. While it may be true, as the Respondent contends, that the
source of the money was a loan from Edward R. Tautkus, Sr., the
documentary evidence which the Respondents provided at the hearing
is questionable.
On the other hand, there is credible testimony from Jane Santos,
the Tautkus' accountant, that Edward R. Tautkus, Sr. told her in
early 1981 that he had given a $10,000 house loan to Frank Wallen.
Whether Edward R. Tautkus, Sr. was telling Santos the truth or
merely participating in a cover-up scheme is an open question. On
balance, it does not seem likely that Tautkus, Sr. would have lied
to his accountant in 1981 about a loan to Frank Wallen as part of
a cover-up. It is also possible that the $10,000 loan to Frank
Wallen was made by Tautkus but not through the questionable savings
bank withdrawals. Because Tautkus was not available to testify, he
could not shed any light on the matter.
We may never know for certain who gave Frank Wallen the money
from which he paid Kelleher $8,000 in December, 1980. However, even
if Edward R. Tautkus, Sr. were not the plausible source of the
money, it does not necessarily follow that the source of the money
was Charm. At best, the Petitioner has established a circumstantial
case linking Charm to Frank Wallen's $8,000 payment to Kelleher,
but one with too many competing inferences suggesting that Charm
was not the source. Given the lack of direct witnesses linking
Charm, the Respondents' plausible explanation of the course of the
$10,014 Charm check, and the uncertainties presented by the
Petitioner's circumstantial case, the Commission finds that the
Petitioner was not established that the $8,000 came from Charm.
Accordingly, the allegations in the Show Cause Orders relating to
the $8,000 cash payment have not been proved by a preponderance of
the evidence.
2. The $500 party check
The record amply supports the allegation that Wallen violated
G. L. c. 268A, s.23(paragraph 2)(3) by accepting a $500 military
party check from Charm in January, 1982.
As of January, 1982, Wallen was still exercising official
responsibility over Charm's contracts with the DPW, and Charm would
continue to perform such work during 1982. By accepting Charm's
offer to pay for a military dinner in Wallen's honor during the
same period as his exercise of official responsibility over Charm,
Wallen gave reasonable basis for the impression that Charm would
unduly enjoy his favor. In particular, the timing and location of
the discussion of Charm's initial offer created the improper
impression. Charm's offer was made in Wallen's DPW office. The
actual check was given to Wallen in his DPW office during the
discussion of whether Charm could satisfy the very contracts which
Wallen was responsible for overseeing. While it may be true that
there was no evidence of actual favoritism which Charm received
from Wallen, s.23(paragraph 2)(3) does not require such a showing.
Section 23 (paragraph 2)(3) is intended to prevent public officials
from intertwining their public and personal dealings with private
parties, because such conduct raises questions over the integrity
and impartiality of their official acts. By accepting the check,
Wallen gave reasonable basis for the impression that Charm could
unduly enjoy his favor. See, In the Matter of Rocco J. Antonelli,
1982 Ethics Commission 101.
The Commission does not find that Wallen's acceptance of the
check, or Cardelli's authorization of the check, also violated G.L.
c. 268A, s.3. Although the evidence supports the conclusion that
the check was given "for or because of" Wallen's official acts, it
is not clear that what Wallen received was of "substantial value"
to him. The prestige which Wallen may have gained with his officers
by having found a sponsor for the party does not have sufficient
prospective worth or utility value to be regarded as of substantial
value to him. Compare, EC-COI-81-136. Whether Wallen's share of the
party which Charm assumed ($25) was of substantial value to Wallen
presents a closer question. One court decision has concluded that
$50 is substantial
Page 203
value under s.3, Commonwealth v. Famigletti, 4 Mass. App. 584
(1976). but no court cases or Commission decisions have found
substantial value based on a cash payment of less than $50. See,
In the Matter of George Michael, 1981 Ethics Commission 59,69. On
balance, given the potential s.3 criminal sanctions which could
also apply to these facts, it seems more appropriate to address the
problems associated with the receipt of gifts of $25 or less under
s.23 rather than s.3. Section 23 also provides more flexibility to
appointing officials to determine when, if ever, nominal gifts are
appropriate for employees under their authority, and what
safeguards or standards can be established to avoid creating the
impressions which s.23 was designed to prohibit.
3. Wallen's Public and Private Dealings with Kelleher
The Commission concludes that Wallen violated G.L. c. 268A.
s.23(paragraph 2)(3) by virtue of his substantial dealings with
Kelleher in both his public and private capacities. Specifically.
by Wallen's having purchased substantial products and services from
Kelleher and having received numerous accommodations on his overdue
accounts, while continuing to exercise his official responsibility
with respect to Kelleher's contracts with the DPW in 1981 and 1982,
Wallen gave reasonable basis for the impression that Kelleher's
companies would unduly enjoy his favor.
The Commission's conclusion does not rest on whether any
particular accommodation which Wallen received from Kelleher was
unusual or excessive. Rather, it is based on the dimension of
Wallen's private dealings with Kelleher and the importance of the
accommodations to Wallen. In view of this private relationship with
Kelleher, Wallen's official DPW dealings with Kelleher raised
questions over his impartiality.[12] By failing to take any
affirmative steps to eliminate or minimize the impression of
favoritism towards Kelleher, Wallen gave reasonable basis for the
impression that Kelleher's companies would unduly enjoy his favor.
One such safeguard would have been to avoid altogether any private
dealings with Kelleher while exercising official DPW responsibility
over Kelleher. In Wallen's situation, there were at least three
other building supply companies in the area which Wallen knew of
and could have used instead of Kelleher's company
Even assuming that Wallen's private dealings with Kelleher were
unavoidable, Wallen was obliged to establish safeguards with his
appointing official to avoid creating an improper impression.
Recent Commission advisory opinions have required that an employee
with significant public and private dealings with the same parties
disclose the existence of these dealings to his appointing
official. The appointing official may then either 1) assign that
responsibility to another employee 2) assume the responsibility
himself, or 3) make a written determination that the interest is
not substantial enough to affect the employee in the performance
of his official duties. See, EC-COI-83-25; 84-94. The appointing
official is therefore responsible for overseeing the potential
confiict of interest and for determining how the credibility and
impartiality of the agency can be maintained. Wallen did not notify
his appointing official about the private dealings with Kelleher
and took no steps to establish safeguards against his appearance
of undue favoritism.
This is not to say that s.23(paragraph 2)(3) rigidly prohibits
public officials from any private commercial contact with parties
over whom they also have official dealings. One factor is the
relative dimension of the public and private dealings. Where the
dealings are substantial, the impression of favoritism may be
inevitable. For example, in Antonelli, supra, the Commission found
that Antonelli's depositing large sums of county funds in the same
banks at which he was, seeking a large commercial loan during the
same time period created the impression that the banks would unduly
enjoy his favor. On the other hand, the private purchase of a small
over-the-counter product at the same price as other members of the
public pay does not create the same impression of favoritism.
Wallen's dealing with Kelleher are analogous to Antonelli because
substantial funds and accommodations were involved in both his
public and private dealings with Kelleher.
IV. Conclusion and Order
Based upon the foregoing, the Commission concludes that Frank
Wallen violated G.L. c. 268A, s.23(paragraph 2)(3) by accepting
from Charm a military party check in January. 1982 and by
continuing to exercise official DPW responsibility over Kelleher's
contracts while having received substantial private accommodations
from Kelleher.
The Commission concludes that neither Frank Wallen nor John
Cardelli violated G.L. c. 268A, s.3 with respect to the $8,000 cash
payment to Kelleher in December, 1980, or the $500 military party
check in January, 1982.
Page 204
Pursuant to its authority under G.L. c. 268B, s.4(d), the
Commission orders Frank Wallen to pay six hundred dollars ($600)
to the Commission as a civil penalty for his violation of
s.23(paragraph 2)(3) attributable to the military party check.[13]
In its discretion, the Commission does not impose a civil penalty
for Wallen's violation of s.23 attributable to his public and
private dealings with Kelleher. While it is clear that Wallen
violated this section and failed to take any steps to avoid
creating an improper impression, specific steps which Wallen could
have taken to establish safeguards have only been recently
announced by the Commission. Because Wallen's dealings with
Kelleher substantially predated these definitive guidelines, the
Commission will apply civil penalties for failing to establish
sufficient safeguards under s.23(paragraph 2)(3) only on a
prospective basis.
---------------
[1] Under G.L. c. 268A, s.9. it is a violation for anyone to give
or for a public employee to accept anything of substantial value
for or because of any official act or acts within the employee's
official responsibility performed or to be performed by the
employee.
[2] Section 29 (paragraph 2)(3) prohibits a public employee from,
by his conduct, giving reasonable basis for the impression that
any person can improperly influence or unduly enjoy his favor in
the performance of his official duties, or that he is unduly
affected by the kinship, rank, position or influence of any party
or person.
[3] The substance of these motions is discussed, infra.
[4] It is undisputed that, during all relevant periods, Respondent
Wallen has been a municipal employee for the purposes of G. L. c.
268A. See, G.L. c. 268A. s.1(g).
[5] Contrary to the Petitioner's assertion, there is insufficient
evidence to find that the source of the $8.000 cash was Charm. The
Commission's reasoning appears in the Discussion. pp. 12-16. infra.
[6] The Presiding Officer's ruling denying the introduction of an
investigation report relating to the party was a proper exercise
of his discretion.
[7] In addition to Sargent Supply, there were at least three other
companies in the Brockton area which also sold building supplies.
Sometime after December, 1980. Wallen changed companies and
purchased his building materials from a company in Avon.
[8] For the purposes of the statute of limitations. it is
irrelevant which month Wallen actually received the discount from
Sargent Supply. As will be seen, infra, the basis of Wallen's
violation of s.29 is the impression created by his exercising
official DPW duties with respect to Kelleher's business while
having received substantial accommodations from Kelleher.
[9] In his Answer, Respondent Wallen raised certain constitutional
arguments which were not subsequently pursued during the hearing,
in his brief or in oral argument. It is not necessary to address
those arguments here, since they hae already been fully treated in
prior court and Commission decisions. See, craven "State Ethies
Commission, 390 Mass. 191 (1983) [separation of functions]; In the
Matter of Rocco J. Antonelli, 1982 State Ethics Commission
[constitutionality of G.L. c. 268A, s.23(paragraph 2)(3)]
[10] While there were a number of problems in the administration
of the examination which might have distorted the results, the
examiner's opinion should be given some weight.
[11] John Cardelli did not testify or offer support for the
Respondent's verson, However, the Commission is not required to
draw an adverse inference against Cardeili. Cardelli was not under
subpoena to appear after the beginning of the hearings; he never
was called to testify while under subpoena to appear, and never
refused to answer any questions.
[12] Wallen's official dealings included responsibility for
approving and overseeing Kelleher's contracts with the DPW and
arranging for the DPW to use a Kelleher-owned building rent-free
in lieu of Kelleher paying property taxes.
[13] Under G.L. c. 268B. s.4(d), the Commission may assess a civil
penalty of up to $2.000 for each violation of G.L. c. 268A.
End Of Decision