Docket No.: 262


IN THE MATTER OF MANUEL F. SPENCER


Appearing:

Thomas J. Driscoll, Esq., Counsel for Petitioner
State Ethics Commission

Harvey B. Heafitz, Esq., Counsel for Respondent
Manuel F. Spencer


Commissioners: Diver, Ch., Brickman, Burns, Mulligan


Date: January 22, 1985



DECISION AND ORDER


Page 214


I. PROCEDURAL HISTORY


The Petitioner initiated these adjudicatory proceedings on
July 26, 1984 by filing an Order to Show Cause pursuant to the
Commission's Rules of Practice and Procedure, 930 CMR
s. 1.01(5)(a). The Order alleged that the Respondent, Manuel F.
Spencer, a sewer inspector with the Town of Barnstable Department
of Public Works (BDPW), had violated G.L. c. 268A, s. 23(par 2)(2)
and (3) in connection with the installation of a new sewer main.
Specifically, Mr. Spencer was alleged to have violated s.
23(par. 2)(2) by handing out his son's construction company
business cards to Town homeowners when he was responding to their
requests for information about sewer hook-ups between the
homeowner's property and the new sewer main's lateral connections.
The s. 23(par. 2)(3) violation was based on an allegation that Mr.
Spencer had approached the general contractor on the job regarding
using his son's construction company to perform the installation
of the lateral connections.

Mr. Spencer's Answer admitted some of the factual
allegations, denied others, and denied any violation of the
aforementioned provisions. The Answer raised the jurisdictional
issue of whether Mr. Spencer was a municipal employee within the
meaning of that term as defined in G.L. c. 268A, s. 1(g), but this
issue was not thereafter pursued by Mr. Spencer.

An adjudicatory hearing was held on October 9, 1984
before Commissioner Colin Diver, a duly designated presiding officer.
See G.L. c. 268B, s. 4(c). The parties thereafter filed post-hearing briefs and presented oral arguments before the Commission on December 20, 1984. In rendering this Decision and Order, each member of the Commission has heard and/or read the evidence and arguments presented by the parties.


II. FINDINGS OF FACT


1. In August 1982 the BDPW contracted with the QRS
Corporation (QRS) to install a sewerage drainage system in the
Town. Construction begs on or about November 19, 1982 and was shut
down for the winter on December 23, 1982. Work resumed in March
1983 and was completed in June 1983.

2. In the fall of 1982, Mr. Spencer was hired by the BDPW to
inspect QRS's work, including the work of its subcontractors. As
inspector it was Mr. Spencer's job to ensure that all sewer
construction was done properly. If the work was not done
properly, the contractor or subcontractor would have to redo the
work.

3. Mr. Spencer worked as the inspector on the job until it
was shut down for the winter. He did not work for the BDPW
thereafter.

4. In addition to inspecting the work of QRS and its
subcontractors, Mr. Spencer's duties required him to respond to
questions and complaints from homeowners regarding the project,
including questions about the installation of sewer hook-ups from
the homeowners's property lines to the lateral connections. Each
homeowner was responsible for his or her own hook-up.

5. On at least fifteen occasions when visiting homeowners,
Mr. Spencer gave them his son's business card when he was
questioned regarding contractors who could perform the
installation work.

6. On at least some of these occasions Mr. Spencer also gave
the homeowners names of other contractors.

7. In November 1982, QRS hired Craig Medeiros and Son
Contractors (Medeiros) as subcontractor to do the lateral
connections from the sewer main to the property line of each
homeowner along the route of the sewer main.

8. Shortly after Medeiros began work on the laterals, both
QRS's superintendent, Ron Pacella, and Mr. Spencer became
dissatisfied with the quality of Medeiros' work and the amount of
time it was taking him to do it. Mr. Spencer and Mr. Pacella
discussed this dissatisfaction with each other.

Page 215

9. Mr. Spencer's son Jeffrey is the president of a
construction corporation, JJS Contractors, Inc.

10. At some point in December 1982 Mr. Spencer and Mr.
Pacella discussed the fact that Mr. Spencer's son was in the
construction business. In a subsequent conversation, Mr. Spencer
asked Mr. Pacella if he would consider putting his son's company
on the job to perform the lateral installations. There was also
conversation regarding Mr. Spencer's son's availability and
capability of doing the work on the lateral connections.

11. When the sewer project reopened in March 1983 after the
winter shut-down, Mr. Spencer's son's company contracted with QRS
to replace Medeiros and thereafter completed the work on the
laterals.


III. DECISION


For the reasons stated below, the Commission concludes that
Mr. Spencer violated G.L. c. 268A, s. 23(par. 2)(2) and (3).


A. Section 23(par. 2)(2) and (3).

As an independent contractor hired by the BDPW to serve as sewer
inspector, Mr. Spencer was a "municipal employee" as defined in
G.L. c. 268A, s. 1(g)[1] during all relevant times. As such be was
subject to the provisions of G.L. c. 268A Section 23(par. 2)(2)
prohibits a municipal employee from "us[ing] or attempt[ing] to use
his official position to secure unwarranted privileges or
exemptions for himself or others." In Mr. Spencer's case the
handing out of his son's business cards to homeowners in the course
of performing his official duties in effect attached the
endorsement of the BDPW and the Town to his son's business. Such
a endorsement constitutes an unwarranted privilege. See EC-COI-84-
127. Mr. Spencer admitted in his answer that on occasion he had
handed out his son's card although he denied having done so on
fifteen occasions. The only testimony on this point came from
James Sullivan, Director of Investigations for the Petitioner.
The basis of his testimony was an interview he had conducted with
Mr. Spencer in which Mr. Spencer told him he had given his son's
card to fifteen or twenty homeowners. We find Mr. Sullivan's
testimony credible. Since Mr. Spencer did not take the stand there
is no competing evidence on this point. Moreover, as a practical
matter, the exact number of times the card was handed out is
irrelevant. The parties agree that it happened on more than one
occasion, and that is sufficient for purposes of finding a
violation.

The fact that Mr. Spencer mentioned the names of other
contractors at the same time he gave out his son's card does not
alter our conclusion. Giving out a business card goes substantially
beyond simply giving out a name. This is particularly true when a
personal interest such as a family relationship is involved. This
is not to say that public employees may never privately recommend
names of qualified individuals without violating s. 23(par. 2)(2).
What distinguishes Mr. Spencer's conduct is that, by handing out
his son's card during official BDPW visits to homeowners in
relation to the sewer hook-ups, he was lending the endorsement of
the BDPW to his son's business. We therefore find that Mr.
Spencer's conduct violated G.L. c. 268A, s. 23 (par. 2)(2).

B. Section 23(par. 2)(3)

General Laws c. 268A, 23(par. 2)(3) prohibits a municipal
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..."
A major purpose of s. 23(9) is "to avoid situations where employees
engage in conduct which raises questions about the credibility
and impartiality of their work as public employees. The
Commission has consistently applied the [s. 23(par. 2)(3)]
prohibitions whenever public employees have had private financial
dealings with the same parties with whom they deal as Public
employees."[2] Commission Advisory 83-1. The record clearly
demonstrates that there was conversation between Mr. Spencer and
Mr. Pacella about putting Mr. Spencer's son on the sewer project
as a subcontractor. It is also clear that in his official position
Mr. Spencer had significant power over Mr. Pacella and QRS. Thus,
even if Mr. Pacella, rather than Mr. Spencer, had initiated the
conversations about using Mr. Spencer's son, the fact that there
were discussions on the subject which Mr. Spencer made no effort
to avoid is sufficient to give the "reasonable basis" called for
in s. 23 (par. 2)(3). This is particularly true in light of the
fact that when the project reopened in the spring of 1983 Mr.
Spencer's son did perform the work on the laterals. The yardstick
by which "reasonable basis" is

Page 216

measured is not what Mr. Pacella actually thought, but rather
what reasonable impression has been created by the overlap of
public and private dealings.

The Commission has recognized that there might be cases
where it is unrealistic or impossible for public employees to
avoid private dealings with the same individuals with whom they
deal in their official capacity. In those situations, a public
employee has a duty to take affirmative steps to eliminate or at
least minimize the impression of favoritism, for example by
disclosing the situation to an appointing official. See
Commission Advisory 83-I; EC-COI-83-25. Failure to take such
steps creates a reasonable basis for the impression that a
private party will unduly enjoy the public employee's favor. In
The Matters of Frank Wallen and John Cardelli, 1984 Ethics
Commission 197. Mr. Spencer could have avoided problems under
s. 23(par. 2)(3) by disclosing his conversations with Mr. Pacella
to his appointing officials. If he had, the officials could have
taken responsibility for overseeing the potential conflict of
interest and for determining how the credibility and impartiality
of the BDPW could be maintained.

The fact that there is no evidence of actual favoritism by
Mr. Spencer on QRS's behalf does alter the result. We have
consistently held that s. 23(par. 2)(3) does not require such a
showing. See Wallen, supra: The s. 23 prohibition is intended to
prevent more serious situations from occurring, and more serious
questions from being raised. Accordingly, we find that Mr.
Spencer's conduct violated G.L. c. 268A, s. 23(par. 1)(3).

C. Sanction

In determining an appropriate sanction it has been the
Commission's policy to take mitigating circumstances into account
See e.g. Logan, supra; The Matter of William G. McLean, 1982
Ethics Commission 75. We do so here.

In connection with the s. 23(par. 2)(2) violation the
Commission takes note of the following mitigating circumstances.
First, there was evidence that on occasion Mr. Spencer gave
homeowners the names of other contractors in addition to his son.
Although the crux of the violation is that he actually handed out
his son's business card in the course of his official duties, the
effect of the impression is somewhat mitigated by the fact that
he did give other names. Second, the BDPW itself should have
anticipated that, in the course of the sewer project, homeowners
would request information as to who could perform the hook-up
work for them Thus, it should have had a policy for employees in
Mr, Spencer's position to follow. For example, it could have put
together a comprehensive list of local contractors which could
have been given to the homeowners who then could make their own
arrangements. Without condoning Mr. Spencer's actions, we feel
that the absence of such an official policy contributed to the
situation in which Mr. Spencer found himself. Finally, there was
no evidence of unjust enrichment either to Mr. Spencer or his son
as a result of Mr. Spencer's conduct. We therefore believe that a
finding of a violation of s. 23 (par. 2)(2) is a sufficient
sanction in this situation, and no monetary penalty need he
imposed.

There are mitigating circumstances in connection with the
s. 23(par. 2)(3) violation as well First, although Mr. Spencer's
conduct in discussing the hiring of his son with Mr. Pacella
clearly constitutes a s. 23(par. 2)(3) violation, it is comparable
in degree to the conduct which the Commission recently reviewed In
The Matter of John J. Rosario, 1984 Ethics Commission 205 and
assessed no penalty for. Although Mr. Spencer should have
recognized the inherent impropriety of such conversation and
taken steps to minimize any improper impression, the
circumstances surrounding the conversations were such that it may
have been difficult for him to have avoided them entirely.
Second, although Mr. Spencer's son ultimately performed the work
on the lateral connections, the evidence indicates that he only did
so after submitting acceptable estimates and satisfying the
contractor he was capable of performing the job. No evidence of
public harm was presented. We therefore believe that a finding of
a violation of s. 23(12)(3) is a sufficient sanction under these
circumstances.
_______________

[1] G.L. c. 268A, s. 1(g) defines municipal employee as a
person performing services for or holding an office, position,
employment or membership in a municipal 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, but excluding (1)
elected members of a town meeting and (2) members of a charter
commission established under Article LXXXIX of the Amendments to
the Constitution.

[2] See, e.g., In The Matter of William L. Bagni, Sr., 1981
Ethics Commission 30 (state inspector violated s. 23 (par. 2)(3)
by repeatedly soliciting private work from businesses over which
he has official responsibility); In The Matter of Louis L. Logan,
1981 Ethics Commission 40 (state employee violates s. 23(par. 2)(3)
by advancing his Personal funds to a company whale the company is
applying for a large loan which the employee will review in his
state position).

End Of Decision