Docket.: 696
Parties: IN THE MATTER OF STEPHEN V. SHIRAKA
Date: December 15, 2003

DISPOSITION AGREEMENT

This Disposition Agreement is entered into between the State

Ethics Commission and Stephen Shiraka pursuant to Section 5 of the

Commission's Enforcement Procedures. This Agreement constitutes a

consented to final order enforceable in Superior Court, pursuant to

G.L. c. 268B, s.4(j).

On August 14, 2003, the Commission initiated, pursuant to G.L.

c. 268B, s.4(a), a preliminary inquiry into possible violations of

the conflict of interest law, G.L. c. 268A, by Shiraka. The

Commission has concluded its inquiry and, on October 7, 2003, found

reasonable cause to believe that Shiraka violated G.L. c. 268A, s.

23(b)(3).

The Commission and Shiraka now agree to the following findings

of fact and conclusions of law:

Findings of Fact

1. Since June 2000, Shiraka has served as the Manager of Facilities

and Grounds for the Old Rochester Regional School District (the

"School District"). The School District serves three towns:

Marion, Mattapoisett and Rochester. Shiraka reports to the School

District's Associate Superintendent for Finance and Planning.

2. While Shiraka is employed by the School District, which operates

the regional middle school and high school, his responsibilities

extend to the Marion, Mattapoisett and Rochester elementary

schools. Shiraka's job responsibilities include acting as

supervisor on all new construction projects as representative of

the School District and the town School Committees.

3. In December 2000, Mattapoisett, through its school building

committee, retained Turner Construction Company ("Turner") to serve

as project manager on the modernization and expansion of its two

elementary schools. Shiraka attended - together with Turner

representatives, the architect, and school building committee

members - weekly progress meetings, and performed site visits with

this group as well. He also advised School District and

Mattapoisett officials on Turner's management of the modernization

and expansion.

4. Between October 2001 and January 2002, Shiraka, acting in his

private capacity, logged 44.25 hours reviewing documents for Turner

in connection with two Turner projects in other school districts.

He was paid $25 per hour, and so was paid more than $1,100 for his

document review. At the same time he was reviewing these documents

for Turner, Shiraka was advising School District and Mattapoisett

officials on Turner's management of the modernization and

expansion.

5. According to Shiraka, prior to performing the document reviews

for Turner, he had orally apprised the School District's

superintendent of his work, and she approved the arrangement. He

did not file a written disclosure. The superintendent does not

recall discussing the matter with Shiraka, but stated that she

would not have had a problem with it if she had known.

6. In summer 2002, the Dennis-Yarmouth Regional School District was

seeking a project manager to oversee the renovation of its high

school. Turner bid for and won the Dennis-Yarmouth contract, and

retained Shiraka as a part-time Turner consultant on the project on

retainer for $3,000 per month. Shiraka continued to work full-time

for the Old Rochester Regional School District.

7. Shiraka began his work as a consultant for Turner in November

2002, earning $3,000 per month. Turner paid Shiraka $18,000 for

his first six months of work.

8. Shiraka's immediate School District supervisor, the School

District superintendent, and the Mattapoisett building committee

chair all informally approved of Shiraka's work for Turner.

Shiraka did not file a written disclosure, and the approvals were

not in writing.

9. In spring 2003, when the Commission began to review this matter,

Shiraka and Turner suspended the consulting arrangement.

Conclusions of Law

10. G.L. c. 268A, s. 23(b)(3) prohibits a municipal employee from,

knowingly or with reason to know, acting in a manner that 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 fail to act as the result of kinship, rank, position or undue

influence of any party or person. A municipal employee can avoid

a violation of s.23(b)(3) by making an advance written disclosure

to his appointing authority of the facts that would lead a

reasonable person to conclude that he could be unduly influenced.

11. By advising Mattapoisett on its supervision of Turner while

being paid privately by Turner to review documents and later while

serving as a paid consultant for Turner on another district's

construction project, Shiraka acted in a manner that would cause a

reasonable person to believe that Turner could unduly enjoy his

favor in the performance of his official duties. Shiraka filed no

written disclosures.

12. The law's provision for advance written disclosure to dispel

the appearance of a conflict of interest is not a technical

requirement. Such a written disclosure is a public record; it

avoids later disputes over whether an arrangement was disclosed,

and more important subjects the arrangement to public review. That

public review usually leads to a heightened review of the

arrangement by those officials charged with overseeing the public

employee's performance.

13. Despite Shiraka's good faith effort to secure his superiors'

approval of his consulting work, because of the failure to file a

written disclosure neither Shiraka's arrangement with Turner nor

his appointing authority's awareness of that arrangement was open

to public scrutiny. Given the nature of Shiraka's relationship

with Turner, it would be very difficult for a member of the public

to discover the relationship, absent a written disclosure.[1]

Resolution

In view of the foregoing violation of G.L. c. 268A by Shiraka,

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 Shiraka:

(1) that Shiraka pay to the Commission the sum of $1,000.00 as

a civil penalty for violating G.L. c. 268A, s. 23(b)(3); 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 this or any other related administrative or

judicial proceedings to which the Commission is or may be a

party.

STATE ETHICS COMMISSION

By:

/s/Peter Sturges, Executive Director

Dated: January 5, 2004

/s/Stephen V. Shiraka

Dated: December 15, 2003

I, Stephen V. Shiraka, have personally read the above Disposition

Agreement. I understand that it is a public document and that by

signing it, I will have agreed to all of the terms and conditions

therein including payment of $1,000.00 to the State Ethics

Commission.

Stephen V. Shiraka

Dated: December 15, 2003

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[1] While a public employee's supervisors should appreciate

the need for a written disclosure in cases such as this, ultimately

it is the employee's responsibility to comply with the law.


End Of Decision